President Joe Biden is set to unveil the first chunk of his infrascture plan on Wednesday. This is the part that tackles the crumbling physical infrastructure—roads, bridges, rail, etc.—with the promise of a social infrastructure plan for American workers to follow. While he's reading that initial plan, Senate Majority Leader Chuck Schumer is getting creative in the legislative approach for passing it.
Schumer is exploring what he sees as a potential loophole, "a magical parliamentary trick" in the 1974 Congressional Budget Act. A Schumer aide told Politico that some of his top policy aides "made the argument to the Senate Parliamentarian that Section 304 allows for at least one additional set of reconciliation bills related to revenue, spending and the public debt to be considered for Fiscal Year 2021." Here's the text Schumer's staff are pointing to: "At any time after the concurrent resolution on the budget for a fiscal year has been agreed to pursuant to section 301, and before the end of such fiscal year, the two Houses may adopt a concurrent resolution on the budget which revises or reaffirms the concurrent resolution on the budget for such fiscal year most recently agreed to." It's that "revises" that they argue gives them another bite at it, that they can bring up an already-passed budget resolution like the American Rescue Plan and amend it to include the new stuff.
Budget reconciliation is the process the Congress used to pass the COVID-19 relief bill, the American Rescue Plan. It is a way to bypass the 60-vote majority filibuster, but is infrequently used because it takes up a ton of floor time, with unlimited amendments being available to both parties in the Senate. It has traditionally been seen as available for use a maximum of two times a year. Section 304 has not been used before, Schumer's staff say, so this is new for them and for the Senate parliamentarian, the staff member in charge of interpreting Senate rules and advising on what's allowable under them.
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This would, theoretically anyway, give the Senate majority virtually unlimited attempts at using budget reconciliation, if they had the time and energy to do it. Because again, vote-a-rama and nearly unlimited ability for the Republicans to do their worst on the Senate floor.
It would however, mean Biden's infrastructure and climate plan could begin to move. Though the plan isn't out yet, sources tell The Washington Post this round will include $2.25 trillion of spending: around $650 billion for roads, bridges, ports, etc.; around $400 billion for care for the elderly and disabled; about $300 billion for affordable housing infrastructure; and $300 billion to shore up the country's manufacturing base. There's hundreds of billions more for the electrical grid, national high-speed broadband infrastructure, and water systems. It will also include a repeal of much of the Trump tax scam, the 2017 law that gave big tax breaks to the wealthy and corporations. Initial reports say that it would raise the corporate tax rate from 21% to 28% and include measures to prevent corporations from using offshore shelters to avoid taxes. Also—and this is pretty big—it would end subsidies to fossil fuel companies.
That whole part of it is what’s making Republicans balk, because they'd rather that their funders have nice things and lots of money than their constituents. In fact, Minority Leader Mitch McConnell is already rejecting the plan. "Unfortunately, this looks like it's not going to head in the direction that I had hoped," McConnell said at an event in Kentucky on Monday. "My advice to the administration is, if you want to do an infrastructure bill, let's do an infrastructure bill. Let's not turn it into a massive effort to raise taxes on businesses and individuals."
One Democrat in the House got this precisely right: "The Senate is totally screwed up … The Senate needs to figure out how it wants to be an effective legislative body, and that’s kind of the bottom line." That's not going to happen as long as McConnell is drawing breath as Republican leader. That was proven true on COVID-19 relief—if he wasn't going to allow his members to step up to save the country in the face of a goddamned pandemic, he sure isn't going to do anything to help the country on infrastructure. After all, with his spouse Elaine Chao as Trump's Transportation secretary, his home state of Kentucky is in pretty good shape. Between the two of them, they funneled millions into the state.
What the Senate needs to do is get rid of the filibuster. That's the only way to break McConnell's grip, the only way for the nation to move forward. Even if everything aligned for Schumer to use reconciliation on this part of the bill, much of what needs to happen can't be done through it. The For the People Act and the John Lewis Voting Rights Advancement Act to restore democracy can't pass through reconciliation. Nor can the Equality Act, which passed the House back in February and would finally give full civil rights protections to LGTBQ people. Nor could most of Biden's ambitious agenda to expand the Affordable Care Act, or any number of policy necessities.
None of that advances without the end of the filibuster. So it's on infrastructure that Schumer and Biden might be able to make some inroads with Democratic senators like Joe Manchin, who are essentially forcing them to explore such extreme measures as using budget reconciliation over and over and over because they won't nuke the filibuster. That would be a much simpler solution, allowing all sorts of legislation to be enacted, including all the nonspending and revenue measure that don't qualify under reconciliation.
These are all things the entire nation needs: roads and bridge and high-speed internet. Things that Republicans should support. Perhaps by proving to Manchin that Republicans aren't going to break McConnell's hold and let the Senate function again, perhaps, just perhaps, the way for filibuster reform will open.